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July 10, 2023 1:05 pm MST

Bob Marshall Broadens Open Meetings Law Crusade

  • by: Colorado Pols
The meeting about the meeting, within the meeting…

Two state lawmakers have filed a legal complaint against the leadership of both Democratic and Republican caucuses at the state legislature — as well as the entire Colorado House of Representatives — over allegations of a Russian nesting doll of open meeting violations. As Colorado Public Radio reports:

A court complaint filed on Friday alleges that members of both parties routinely break the law by having substantial conversations about public policy without providing required notice to the public. It also targets the widespread use of “ephemeral” messaging apps like Signal, which lawmakers can use to send self-deleting messages to their colleagues.

The complaint describes several kinds of unofficial meetings. They include frequent planning sessions where Democrats allegedly mapped out how committee meetings would play out, with those meetings including enough members to constitute a quorum of the committee — which could allow them to decide the fate of bills before the committee hearing itself…

…The complaint argues that these practices violate the Colorado Open Meetings Law, which governs public bodies including the House itself, its committees and its caucuses. The law states that any meeting of “two or more members of any state public body at which any public business is discussed” must be open to the public. And when there is a meeting with a quorum of members — such as the alleged committee planning sessions — the public must be given “full and timely notice.” Public bodies also must produce and share meeting minutes.

In addition, the suit calls out a practice in which committee members hold “meetings within meetings,” by sending encrypted, self-destructing messages to one another even as witnesses or other lawmakers are speaking. It also alleges Republicans used one of those apps, Signal, to coordinate a walkout on the final day of the Session. [Pols emphasis]

Terminator robots shouldn’t be able to kill us all without adequate public notice.

“Meetings within meetings” via “self-destructing messages.” As you can see, potential violations of Colorado’s Open Meetings Law — which is intended to make sure that local government decisions be discussed in a public manner — can get pretty complicated with the adoption of new emerging technologies that often evolve quicker than the rules (we don’t even want to THINK about what happens when the machines take over and Artificial Intelligence ignores Open Meetings requirements).

As The Colorado Sun reports, caucus leaders responded to news about the lawsuit in a similar fashion. Here’s the Democrats:

House Speaker Julie McCluskie and House Majority Leader Monica Duran, D-Wheat Ridge, responded in a written statement Monday.

“House Democratic leadership is committed to open and transparent government and ensuring a fair and public process for policymaking,” the statement said. “We are still reviewing the complaint in full, and we stand by our caucus — dedicated public servants who work tirelessly on behalf of their constituents.”

And here’s the Republicans:

Roger Hudson, deputy chief of staff for the House GOP, said the lawsuit represents “what Coloradans hate about politics at the Capitol.”

“The infighting and expense is only a distraction to the priorities that they care about — improved schools, safer communities, more jobs at higher wages and better roads throughout our state,” Hudson said in a statement. “Republicans continue to believe that the people of Colorado deserve access to their government through comprehensive open meetings and open records laws — we welcome any conversation that will update our statutes to keep up with rapidly evolving technology.”

State Rep. Bob Marshall (D-Douglas County)

State Rep. Marshall is in his first term as a member of the state legislature after a surprise victory in November in HD-43. Marshall has a history of advocating that Colorado’s Open Meetings Law (OML) be followed more closely. In February 2022, Marshall sued the Douglas County School Board for violating the OML in a case related the the firing of former Superintendent Corey Wise. Last month a judge ruled in Marshall’s favor in the case, though Marshall is now pushing for stronger requirements to prevent the school board from just doing the same thing again (the DougCo School Board has all sorts of problems; just last month, a separate lawsuit was filed alleging violations of Colorado’s Open Records Act).

In other words, Marshall is kinda the “Open Meetings Guy,” though targeting the entire House of Representatives is on a different scale. But as Marshall told The Colorado Sun, he’s taking a broader view of the issue by targeting the system, man:

In an interview with The Colorado Sun, Marshall said he doesn’t blame legislature leadership but rather the entire institution, where he alleges these issues have been taking place for decades.

“They inherited this swamp,” he said.

Marshall added that he and Epps stopped short of filing a motion for a preliminary injunction to avoid a court hearing. Instead, he hopes the defendants will simply address the allegations and begin making changes. At present, the open meetings laws are too difficult to follow while still getting work done, he said…

Accusations of OML violations are fairly common in Colorado, in part because it can be difficult to nail down what constitutes a meeting that should require public notice. Both Democratic and Republican caucuses, for example, have regularly held rubber chicken lunches over the years to discuss all matter of issues. Inviting the public to such a luncheon almost seems cruel.

Marshall’s challenge of the DougCo School Board has been (mostly) resolved but is still not complete 18 months after his first filing. It’s reasonable to assume, then, that Marshall’s complaints about the state legislature could drag on for some time (the suit also asks for attorney’s fees, which is a settlement that would eventually be paid for at taxpayer expense). We’ll keep an eye on this story and update as necessary.


8 thoughts on “Bob Marshall Broadens Open Meetings Law Crusade

  1. Being known as the "Open Meetings Guy" seems like a pretty good reputation to have, so I can see why Marshall feels like he can't just sit and watch potential Open Meeting Law violations happen.

    I like that this lawsuit doesn't feel mean spirited and feels like how government should function.

    * We created hard to follow Open Meeting Laws and representatives are likely violating them because they're hard to follow.

    * Marshall and Epps noticed this and brought it up to leadership.

    * Action was not taken as Marshall and Epps expected so they are suing to force leadership to follow the laws as written.

    If Colorado representatives can follow the current Open Meeting Laws to the best of their ability while working to make Open Meeting Laws easier to follow then that sounds like bipartisan legislation that everyone can get behind!

  2. Even if the D’s fall in line with open meetings and fall in line with open caucus meetings, I don’t see the R’s following suit. 

    Also, the press knows about caucus meetings but have chosen to ignore them.

  3. I'm old, though still 2Jung2Die, but I have questions. Would Signal be OK under COML if it was just used for one-on-one messages? Should legislators technically give advance public notice if they want to do a fairly conventional text message involving more than two people during a meeting? If only two people are on a text but they forward the message to one or more other legislator(s) without notice, would it become a COML violation?

    I guess fundamentally I understand the utility of COML advance notice for actually scheduled live or zoom-type meetings, but not so much for the real-time digital stuff which is part of our modern reality.

  4. One reason, perhaps the main reason, OML lawsuits are common in Colorado is because that is pretty much the only enforcement mechanism. There isn't a State Dept of Sunshine that steps in to make sure its local governments are following the actual laws they are bound to. Citizens or organiztions have to sue to uphold open record laws and open meeting laws in Colorado. 

    So, imo it is not an issue to make lightly of. Open meeting and sunshine laws matter if its our team or their team holding the gavel.


  5. Could one of our legal beagles on this site know whether courts can order attorneys’ fees and costs awarded to the winning party in OML lawsuit? 

    If my mixed up memory still serves at all, I think judges can do this. If it’s made mandatory, there’s the enforcement.


    1. Yes, costs can be awarded. Making awards mandatory for winning party can cut both ways. But right now citizens often have to make big up front expenditures (counties can also charge big fees for CORA fulfillment) to even get their case heard, then to fight it in court; which is all prohibitive to start, then sometimes to be hit with all the agency/govt's attorney fees too. 

      I think the onus should be on public bodies to abide by public meeting and open records laws and to be able to always affirmatively demonstate that they are doing so, for starters.

      There also needs to be mechanisms to force better oversight so that when public bodies stray from their sworn obligation to the public, to fulfill their public mission to conduct public business spending public funds in public; citizens can raise concerns and challenge that short of filing a lawsuit in a Court of Law.

      For instance DORA has an insurance division where consumers can file a complaint and someone looks into it. Just because public officials don't always like the public to watch the public business being done doesn't mean they should be allowed to duck it. IMO. 

  6. Truth is, Democratic leadership treats Democratic moderates like they are Republicans…they completely ignore every Democratic politician out of a red county.  It's gotten more pronounced with the large majorities on both chambers. Apparently, Polis isn't sure where Douglas County is on the map.   

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